Donald Trump’s claim that former White House counsel Don McGahn is immune from a House Judiciary Committee subpoena and his direction to McGahn not to even show up at the May 21 Committee hearing have earned Trump another dubious distinction: He has now taken an even more extreme position on executive privilege than either Richard Nixon or George W. Bush.
Let’s start with President Nixon. He took his claim of executive privilege on the Watergate tapes to the Supreme Court, which unanimously rejected his view. But when it came to congressional testimony from former White House aides, including former counsel John Dean, Nixon’s actions were markedly different than President Trump’s. Although Nixon originally raised executive privilege concerns, he conceded in May 1973 that such privilege claims “will not be invoked” concerning requested congressional testimony by former White House aides about Watergate. Dean then provided important testimony before the Senate Watergate committee.
Relying on one of the same lawyers who now advises Trump, President George W. Bush took a different approach when the House Judiciary Committee subpoenaed his former White House counsel Harriet Miers to testify in 2007 about the firing of Republican U.S. attorneys in late 2006. As I recall from my work as chief oversight counsel for the Committee, Bush initially took the same position based on executive privilege as Trump has, claiming that Miers was immune from being summoned to testify.
But there are two notable differences that make Trump’s conduct even more extreme. First, Miers had not previously testified to anyone about the U.S. attorney firings. The Committee knew only about several emails on the subject by or to her that DOJ had in its files and testimony from one fired U.S. attorney about a conversation with her. In contrast, McGahn has testified extensively to special counsel Robert Mueller, as has been disclosed in some detail to the public, but the White House objection prevents McGahn from even saying to the Committee precisely what he has already said to Mueller.
Experts have suggested that by authorizing McGahn to speak to Mueller and the public disclosure of the report including his testimony, the White House and Trump have waived any argument that McGahn should not testify to Congress, at least as to what he told Mueller. The White House’s claim that McGahn is immune is even weaker with respect to testimony about the reported White House request that he publicly declare that Trump did not obstruct justice, which happened after he left as counsel.
In addition, in Miers’ case, a federal judge rejected the immunity claim, which President Bush later accepted. In particular, after Miers defied its subpoena, the Committee went to court and, in an extensive opinion by a federal judge appointed by Bush himself, Judge John Bates firmly rejected the claim. Specifically, he explained, the immunity assertion is “entirely unsupported by existing case law,” and there was “nothing left” to the argument since the Supreme Court rejected an absolute immunity claim for presidential aides in another case. Although her testimony did not occur until after Bush left office, Miers did in fact testify by deposition pursuant to the subpoena, and Bush did not object.
Trump’s claim rests on a brand-new DOJ Office of Legal Counsel opinion, which repeats previous OLC claims that Judge Bates unequivocally rejected. And the new OLC opinion concedes that other Presidents have sometimes approved aides’ Congressional testimony and that the public release of the Mueller report does “extinguish” privilege claims about what has “already been revealed.”
The McGahn issue is only one of over 20 instances where Trump has blocked congressional oversight, and there is substantial concern that Trump may be able to “run out the clock” and prevent final resolution until after the 2020 election. All this makes it crucial that Americans recognize how extreme Trump’s positions really are, that the House and the courts do all they can to promptly resolve these issues, and that McGahn provide testimony to the Committee as soon as possible.
Elliot Mincberg is a senior fellow at People For the American Way and a former chief oversight counsel for the House Judiciary Committee.